PUBLICATIONS

STATE EMPLOYMENT CREDIT CHECK LAW TAKES EFFECT
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2012-01-17

California employers may wish to obtain employees' and applicants' credit information as part of their hiring processes and for other employment-related reasons. Assembly Bill 22, which took effect on January 1, 2012, significantly restricts employers' ability to procure credit reports. The new law specifically applies to credit checks and does not address criminal record and other background checks.

EMPLOYEE REPRESENTATIVE ACTIONS: A "CLASS" OF THEIR OWN
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2011-12-27

The United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion allows parties to avoid arbitrating class action claims. The Court overturned an earlier California Supreme Court decision, in which the state court held class action waivers in arbitration agreements were unenforceable. The U.S. Supreme Court based its decision on the Federal Arbitration Act's ("FAA") mandate that parties be given the freedom to choose the scope of agreements to arbitrate.

UPDATING EMPLOYEE HANDBOOKS FOR 2012
By Jennifer Brown Shaw and Alayna Schroder
The Daily Recorder
2011-12-13

Much of the legislation passed in 2011 goes into effect on January 1, 2012. Employers should update their employee handbooks or other policies to reflect these legislative and other changes. Here are some of the most significant changes facing California employers.

TREATING "SIMILARLY-SITUATED" EMPLOYEES THE SAME
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2011-12-06

Most employers know that consistent application of internal policies and job standards can prevent discrimination and retaliation claims. This is particularly important because plaintiffs seeking to make such claims must establish that the employer treated “similarly-situated” persons outside their protected group more favorably.

MORE ON SOCIAL MEDIA AND EMPLOYMENT LAW
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2011-11-22

With the emergence of an active National Labor Relations Board (“NLRB”), non-union employers are learning about the National Labor Relations Act (“NLRA”) the hard way. The NLRB’s keen interest in how employers attempt to regulate employees’ use of “social media,” such as Facebook, Twitter, and related sites creates new challenges for management unfamiliar with the NLRA and its requirements.

NEW LAWS FOR CALIFORNIA EMPLOYERS
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2011-11-01

Recently, Governor Brown signed into law a few key bills that mark significant changes for California employers. Employers should prepare now to comply with these new laws (most of which become effective January 1, 2012) and adjust their practices accordingly. Full texts of each of these laws can be found at: http://leginfo.legislature.ca.gov/faces/homeTemplate.xhtml.

AB 469: WAGE THEFT PREVENTION ACT OF 2011
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2011-10-25

One of several employment laws recently signed by Governor Jerry Brown, AB 469 takes effect on January 1, 2012. Titled the “Wage Theft Prevention Act of 2011,” AB 469 modified a number of current laws and created several new Labor Code provisions.

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING'S NEW PROCEDURAL REGULATIONS
By D. Gregory Valenza
The Daily Journal
2011-10-12

The Department of Fair Employment and Housing has just issued its first set of procedural regulations, available at http://tinyurl.com/DFEH-Regulations, and codified at 2 Cal. Code Regs. § 10000 et seq. The new rules will govern how the agency accepts and processes complaints of unlawful discrimination, harassment and retaliation under the Fair Employment and Housing Act, Unruh Civil Rights Act, Ralph Act and the Disabled Persons Act.

IRS AMNESTY FOR MIS-CLASSIFIED INDEPENDENT CONTACTORS
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2011-10-11

There are lots of reasons employers like to hire “independent contractors” instead of employees. A company’s budget may limit headcount, but allow for hiring “consultants.” Independent contractors do not require company-provided benefits. There is less chance of employment related litigation. Most wage-hour laws do not apply. And, yes, the employer does not have to pay its share of social security tax or withholdings.

ANOTHER WORKPLACE POSTER FOR EMPLOYERS
By D. Gregory Valenza
Daily Journal
2011-09-29

Employers are legally required to post at their workplaces information about a variety of employment laws and rights, including employment discrimination and harassment law, minimum wage, overtime, family and medical leave, and workers’ compensation. The National Labor Relations Board just issued a new final regulation, requiring all but the smallest employers to post information about employees’ rights under the National Labor Relations Act. Employers must be prepared not only to meet the November 14, 2011 deadline but also to lawfully and correctly answer the questions that the information in the poster likely will raise.

JOB PROTECTIONS AND LEAVES OF ABSENCE FOR SERVICEMEMBERS AND THEIR FAMILIES
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2011-09-19

With military engagements in Afghanistan and Iraq, employers now more than ever must deal with employees’ commitments to the military. Under both federal and California law, servicemember employees – and their families – have broad protections and leave entitlements.

U.S. SUPREME COURT EMPLOYMENT LAW DECISIONS 2010-2011
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2011-08-25

The United States Supreme Court decided several important cases affecting employers during its October 2010 Term. The decisions addressed the scope of liability for retaliation and discrimination, arbitration, class actions, and benefits. Below is a summary of the Court’s major decisions in chronological order.

CALIFORNIA SUPREME COURT’S EMPLOYMENT LAW DECISIONS: 2010-2011
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2011-08-09

Every year, the California Supreme Court decides cases that have significant impact for California employers. In its most recent term, the Court addressed a variety of relevant employment issues. Below, we summarize some important cases, and also address additional key issues awaiting the Court’s review.

VACATION CLARIFICATION: NEW DEFINITION MAY AFFECT EMPLOYEE COMPENSATION
By D. Gregory Valenza
The Daily Journal
2011-08-09

What counts as paid “vacation” that vests as it is earned and cannot be forfeited under California law? The distinction between leave that is and is not deemed vacation is significant. The law generally requires payment of unpaid wages, including unused, earned vacation pay, on the employee’s termination date. Untimely payment of wages can result in significant “waiting time” penalties under Labor Code Section 203.

CALIFORNIA OVERTIME PAY FOR EMPLOYEES WHO DON’T REGULARLY WORK IN CALIFORNIA?
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2011-07-26

Employers with workers who perform their duties in more than one state must comply with various state and local laws regarding a broad range of subjects, from worker safety, to drug testing, to anti-harassment training. Wage and hour rules are among the areas of employment law that vary the most from state to state. They address overtime pay, minimum wage, recordkeeping, meal periods, and more. Already difficult to navigate, wage and hour laws become more complex when employees perform work in multiple states during the same week – or even on the same day.

WAL-MART DECISION RAISES THE BAR ON CLASS ACTIONS
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2011-07-13

Before concluding the October 2010 Term, the United States Supreme Court issued a ruling in the largest employment law class action in U.S. History, Wal-Mart Stores, Inc. v. Dukes, et al.. The decision created a stir because it reversed the lower courts’ certification of a class of approximately 1.5 million female employees. The lawsuit’s crux is that Wal-Mart discriminates against females based on their sex, particularly in promotion decisions. The Supreme Court found that the class members did not have enough in common under the applicable federal standards to proceed as a nationwide class action.

SMOKING MAY CAUSE UNEMPLOYMENT
By D. Gregory Valenza
The Daily Journal
2011-07-12

A reporter interviewed me on the radio a couple of weeks ago, about a health care employer's decision to refuse to hire smokers for its Arizona facilities. The reporter was incredulous that an employer could decide not to hire an applicant based on conduct away from work. The principal question: Is that legal?

MAKING SENSE OF “E-VERIFY”
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2011-06-28

California employers likely know their obligation to verify the employability of their newly hired workers through the federal I-9 process, to prevent the employment of undocumented workers. Under this process, employees present documentation establishing eligibility to work, and proof of identity. Federal regulations specify which documents are sufficient to establish each of these requirements. The employer reviews these documents to make sure they appear reasonably genuine. The employer and employee complete a Form I-9 documenting this process. The employer is responsible for ensuring that the I-9 verification paperwork is completed timely and correctly, and for maintaining these records and making them available for inspection upon request.

AMENDMENTS TO THE FAIR LABOR STANDARDS ACT
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2011-06-17

Some California employers may have noticed that the federal Department of Labor (“DOL”) recently issued new regulations applicable to the Fair Labor Standards Act (“FLSA”). The DOL’s stated purpose is to provide clarification on certain regulations and to align the FLSA with other federal statutes. The following is an overview of the revisions pertaining to overtime and tips, as well as the corresponding law in California.

COMMISSION ACCOMPLISHED
By D. Gregory Valenza
The Daily Journal
2011-06-15

The definition of "commission" can mean the difference between an employee who is entitled to overtime pay and one who is exempt from overtime and other wage-hour laws. Both federal and California law exempt retail salespersons who earn at least 50% of their wages via commissions (along with other requirements). An incentive payment that does not qualify as a "commission" is not counted towards the 50% threshold.

PRIVACY IN HIRING PROCEDURES
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2011-06-01

With today's technology making a wide variety of personal information easily accessible, employers may uncover unprecedented data about applicants and employees with limited effort. Whether through a casual search or a thorough background investigation conducted by a third party, employers can obtain significant background information with the click of a mouse.

EMPLOYMENT ARBITRATION MAKES A COMEBACK
By D. Gregory Valenza
The Daily Journal
2011-05-18

Unless Congress acts to overturn the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion, ____ DJDAR ____ (Apr. 27, 2011), employers with properly drafted arbitration agreements can cross employment law class actions off their lists of things to worry about. The California Supreme Court largely prohibited employers (and anyone else) from excluding class-based claims from arbitration agreements. But Concepcion and the U.S. Supreme Court's decision last Term in Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. ____ (2010), hold that the Federal Arbitration Act preempts California case law, and permits employers to require employees to forego the right to arbitrate on behalf of a class.

REQUIRING EMPLOYEES TO SUBMIT TO FITNESS-FOR-DUTY EXAMS
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2011-05-17

Suppose an employee stocks incoming products in the back of a retail store. He operates a forklift. The supervisor recently noticed the employee nearly dozed off on a few occasions while operating the forklift, and seems lethargic at other times. After the employee nearly runs over another worker, the supervisor calls Human Resources and asks whether the employee can be forced to obtain medical clearance to work.

THE CAT'S PAW SWIPES EMPLOYERS
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2011-05-03

In light of a recent United States Court decision, Staub v. Proctor Hospital, careful employers should consider requiring a review of lower-level managers' and supervisors' recommendations to terminate or take other actions against employees. A review allows more responsible managers to detect ill-motivated decisions that could turn into legal claims. Senior managers, uninvolved in the day-to-day supervision of an employee, can lend a degree of objectivity. They also ensure consistent application of company policies. Depending on the level of scrutiny, a second or third-level review can also ensure proper documentation identify "red flags" and assess potential risks.

BE WARY ABOUT WAIVERS IN ARBITRATION AGREEMENTS
By Jennifer Brown Shaw and Amy K. Lee
The Daily Recorder
2011-04-20

California courts profess to favor arbitration as a means to resolve disputes, including those between employers and employees. When an employer enters into an arbitration agreement with an employee, the employer is generally looking for a lower cost, faster, and more informal method of resolving disputes that does not involve the unpredictability of a jury.

TOP 10 EMPLOYEE HANDBOOK MISTAKES
By Jennifer Brown Shaw and Alayna Schroeder
HRCalifornia White Papers
2011-04-13

Done right, employee handbooks serve multiple functions. They provide employees with important information about a company, its practices and the working environment. They also help protect employers legally by setting clear expectations and standards that employees must comply with.

WE'RE ALL INDIVIDUALS WITH DISABILITIES NOW
By D. Gregory Valenza
The Daily Journal
2011-04-12

The Equal Employment Opportunity Commission just issued final regulations interpreting the Americans With Disabilities Act Amendments Act of 2008. Published at 29 CFR Part 1630, the new regulations take effect on May 14, 2011. Employers and their lawyers should become familiar with the Commission's new interpretation of the Act's definition of "disability."

GENDER STEREOTYPING AND ANTI-DISCRIMINATION LAWS
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2011-04-05

Can en employer legally fire an employee for not being "pretty enough?" Consider the following scenario: A supervisor first approves a female employee's transfer to a receptionist position. Later, the supervisor questions the transfer after meeting the employee and determining she is not a "good fit," because she lacks the "Midwestern girl" look the supervisor wanted. The employee wears her hair short, foregoes makeup, and frequently dressing in men's clothes. In the past, the supervisor has refused to hire female applicants she has deemed "not pretty enough" for the job. Ultimately, the employee in question is fired after questioning the job-related relevance of her appearance.

THE OUTSIDE SALES EXEMPTION TO WAGE-HOUR LAW
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2011-03-22

Employers and courts have been busy in recent years shaping wage-hour laws that were long dormant. The applicability of several, limited "exemptions" to the rules that entitle employees to minimum wage, overtime, and other wage and hour protections has been the subject of a great deal of litigation.

KEEPING UP WITH WAGE-HOUR LAW IS HARD LABOR
By D. Gregory Valenza
The Daily Journal
2011-03-11

The wage and hour area of employment law has been especially volatile recently. What employment lawyers thought was safe advice may be rendered stale by a new court opinion, law, regulation or opinion letter.

EMPLOYEES AS CAREGIVERS
By Jennifer Brown Shaw and Alexander M. Sperry
California Employer Update
2011-03-11

An employer is looking to fill a vacant position. It has narrowed its applicant search to two female candidates.

WORKPLACE IMPLICATIONS OF THE DODD-FRANK ACT
By Jennifer Brown Shaw and Timothy L Reed
The Daily Recorder
2011-03-09

On July 21, 2010, President Barack Obama signed H.R. 4173 — better known as the Dodd-Frank Act ("Dodd-Frank"). The stated purpose of the new law is:

To promote the financial stability of the United States by improving accountability and transparency in the financial system, to end 'too big to fail,' to protect the American taxpayer by ending bailouts, [and] to protect consumers from abusive financial services practices...

RETALIATION CLAIMS: RECENT DEVELOPMENTS
By Jennifer Brown Shaw
San Joaquin Human Resources Association
2011-03-07

The law regarding retaliation in the workplace has expanded rapidly in several respects during the last few years. The United States Supreme Court's recent unanimous decision in Thompson v. North American Stainless, LP, discussed below, demonstrates how far the law may be stretched in this area.

NO PROTECTED ACTIVITY? NO PROBLEM
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2011-02-24

law regarding retaliation in the workplace has expanded rapidly in several respects during the last few years. The United States Supreme Court's recent unanimous decision in Thompson v. North American Stainless, LP, discussed below, demonstrates how far the law may be stretched in this area.

KAPLAN GETS TESTED
By D. Gregory Valenza
The Daily Journal
2011-02-09

In my May 13, 2010 column,"What's in Your Wallet, Job Applicant," I addressed increased government scrutiny of employers who rely on credit checks to screen applicants. The Equal Employment Opportunity Commission has decided to turn up the heat.

EMPLOYEE PERFORMANCE EVALUATIONS
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2011-02-08

Employers have different perspectives about whether to conduct formal employee performance evaluations. Some employers believe the evaluation process is too time-consuming and are unwilling to invest the energy and resources necessary. Other employers evaluate their employees on a regular basis, such as annually, or at the end of the "introductory period," but do not think about why it is important to do so.

LIABILITY FOR THE REGULAR COMMUTE
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2011-01-26

When it comes to liability for employees' actions away from the workplace, employers may be responsible for activities and behavior beyond their control. Under the doctrine of respondeat superior, an employer may be held liable for an employee's negligence or other misconduct when committed within the scope of his or her employment. For example, when an employee is involved in a traffic accident while driving on company business, the employer may be held liable simply because the employee was on the job and driving for the employer's benefit.

CAN SEXUAL HARASSMENT BE PART OF THE JOB?
By D. Gregory Valenza
The Daily Journal
2011-01-20

Sexual harassment litigation most often involves claims by employees that co-workers or supervisors have created a "hostile work environment." But the anti-harassment laws do not stop there. Unlawful workplace harassment also may come at the hands of non-employees, such as customers, vendors, and others who interact with employees.

MENTAL EXAMINATIONS IN EMPLOYMENT LITIGATION
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2011-01-11

Employers who are sued by current and former employees are often surprised by the degree of emotional distress alleged to have been caused by their supposed "outrageous," "extreme," "shocking," and/or "despicable" conduct. Nevertheless, such allegations are made only partly for the sake of hyperbole in discrimination, harassment, and retaliation cases. Certain damages, such as lost wages, must be supported by concrete evidence. However, damages for emotional distress, available for many employment-based claims, are hard to prove and are largely left to a jury's discretion. The courts instruct jurors to "use [their] judgment to decide a reasonable amount based on the evidence and [their] common sense."